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Lecture Slides:

Welcome to YouCounsel.

On a daily basis in our courts, judges have to decide whether to believe a particular witness or not.  How do they make that decision? What magical tools do they have at their disposal? What kind of principles do they keep in mind in deciding the credibility of a witness? This is the topic of today’s lecture.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Now this witness credibility issue is most pronounced in he said/she said cases—in cases where there are 2 witnesses who have conflicting oral evidence about an incident.  The judges have to decide which witness is telling the truth and which witness is not to be believed.  In cases where there is minimal or no documentary evidence, this issue is common—where there is conflicting documentary evidence or conflicting viva voce (oral evidence) as I said between 2 witnesses both have witnessed the same incident but have different evidence with respect to what occurred in that incident.  Then there may be minimal or conflicting extraneous evidence there may not be any third party or other witnesses or may not be any other documentary evidence that sheds light on the issue that is being decided by the judge.

How do the judges make that decision? We have a common misconception—for a lot of people who come to the court and who have no legal experience—that the judges make decisions about credibility of a witness based on how sincere that witness appears to be. This appearance of sincerity is a broad term that is used and it has many manifestations.  For example, in a case where there are emotional elements—where there are issues, for example, of sexual assault or things of that nature, if the witness is crying when describing that particular instance does that make the witness more believable? Does a witness sound more educated when he or she is rendering testimony?  Is the witness using a language that resonates more with the judge? How is the witness dressed? Is the witness dressed in professional clothes? What kind of color is their attire that they’re wearing? I mean these are things that we notice commonly in our everyday life and especially we notice these kind of things in political debates that happen during the election time.  There is a lot of thought that goes into how a candidate is going to perform in an election debate; what kind of clothes they’re wearing; what kind of suit they’re wearing; what is the color of their suit; what is the color of their tie; what kind of haircut they need to have and how do they come across?

For example, during Hillary Clinton’s campaign one of the common criticisms was that she came across as very cold. What has the coldness of a person to do with anything—that person’s credibility? But, we trust people who are more warm; we connect with people who come across as a bit more warm.  These are the things on a daily basis how a lot of us make decisions about credibility of a person who is before us. 

When we come to court we are worried—a lot of witnesses are worried that a person / a witness who is a better performer in court than them will be accepted as more credible.  That is a common misconception.  That is obviously a concern for people who believe that they do not come across as very well educated, very eloquent witnesses.  But that is not how the courts decide on the credibility of witnesses or at least that is how they try not to decide on the credibility of witnesses. I do believe that judges have their unconscious biases that play into the decision-making and with respect to the credibility of witnesses too. 

But the courts have made significant efforts in laying out principles of determining credibility assessments and they follow those principles or at least try to follow those principles. One of the factors the court will consider is what kind of opportunities for knowledge of that incident that this person / this witness is describing had with respect to that incident. Was the person present at that incident? How far was that person? What was the concentration level? Was the person involved in that incident or was it a bystander? What was the bystander doing? What were the opportunities for knowledge of that incident that the witness is describing? What were the powers of observation? Again, this is relating to the opportunities of knowledge.  If you were watching television and something happened outside your window, what was your ability to go? Was it dark in the night? Where was it? Outside? Was it day or night? Were you able to see clearly? Were there street lights or not? – things like that (power of observation of the witness).

Then witnesses make a judgment about a lot of facts that they that they see—what were the kind of judgments that the witness made? What was the memory? What is the extent of memory of that witness of that incident?  Relating to that is the witnesses ability to describe clearly what was seen or heard.  It has a value with respect to credibility. One of the major things that you want to focus on with respect to witness’ evidence is inconsistencies in the witness’ evidence and weaknesses in the witness’ evidence.  That is one thing that we as lawyers focus tremendously on, especially, if we are trying to prove that a witness is not credible. 

What are some of the internal inconsistencies? For example, if the witness was describing an incident and earlier on in his or her testimony the witness said that there were 3 other people who were also present in that situation and then later on at some other point the witness says that there were 5 other witnesses who were present—then this shows an internal inconsistency in the recollection of the witness. You can expose that depending upon the circumstances of the case. Another inconsistency that can be shown is inconsistency with prior statements.  For example, regarding an accident the witness did provide a statement to the police at the time of the accident.  Now when the witness is testifying at trial the testimony that he or she is providing is inconsistent with what was said to the police at the time of the accident.  Showing that there were prior inconsistent statements, you can show that the witness is not credible. Inconsistency with other witnesses—you juxtapose the witnesses evidence with respect to other evidence and figure out what kind of inconsistency there may be or inconsistency with some of the documents that are in evidence and how do you assess the witness’ credibility with respect to those inconsistencies. It is the hallmark of a good lawyer—who exposes inconsistency and weaknesses in witnesses evidence to prove to the court or to show to the court that the witness is not credible.

This is done in a number of ways. One of the common things that lawyers do all the time at examinations for discovery / at a trial is to approach one specific fact from different angles at different times of their examination. They’re bringing the same facts again and again in different ways to see if the witness provides some testimony that is inconsistent with whatever the witness has said before.  There are so many ways to do that.  Inconsistency is one of the key things that lawyers at least try to find in a witness’s evidence and the judges are cautious that if there is inconsistency and weakness in the witness’s evidence, then it will be hard for a judge to find that witness was credible.

Having said that, another major thing that the court will consider is whether the overall evidence of that witness is plausible.  This is the language used in a very famous case which is the seminal case on the credibility of witnesses Farnya v. Chorny.  The court said, “…(is the witness’s testimony) in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”  What it means is: does the witness’s evidence make sense when you consider the entire story – does it make sense?  If it doesn’t make sense then it’s hard for the judge to believe that witness and if it does then it’s more plausible.  In all of this the demeanor of the witness, the sincerity and the use of the language is considered but with caution. It is not something that the judge will take right away that the person comes across as sincere and honest and therefore to believe that person.  No.  It is considered but with some caution. Then also the motives of that witness with respect to fabricating evidence are also concerned.

When a judge has to decide to believe a witness or not, how much does a judge need to believe a witness?  It’s not all or nothing kind of situation.  The court may believe none of the witness’s evidence or part of his or her evidence or all of the witness’s evidence.  It is possible for the court to say I believe this part of the witness’s testimony but I do not believe that part of the witness’s testimony.  It’s not an all or nothing proposition. When the court accepts the evidence it may assign different weight to different parts of the evidence.  When the court says I believe that this person is telling the truth, the evidence is credible, that does not mean that the court has to then make a finding of fact on the basis of that witness’s evidence alone. A court may say we’re going to consider this as something that supports this fact but we’re going to look at some other facts too. They may assign a different weight to the testimony or to different parts of the testimony. For one part of the evidence they may say we believe it 100 percent we’re going to rule that this is how the fact was as described by this witness or they may say that we’re going to believe it and we’re going to assign a lower weight/ less weight to this part of the evidence.  That is open to the court with respect to the evidence.

What is the takeaway? You need to always remember that unreliable witnesses can seriously, seriously undermine the success of the case.  It’s very important that the witnesses that are presented are credible and they provide evidence that is credible to the case. I would recommend that you read these 2 cases: (1) Farnya v. Chorny (1951).  This is the leading case with respect to Credibility Assessment of witness.  It is a treat to read this case. I think you can read it over and over again to understand it. This is relied on by courts all the time. Read that case. (2) Another one which is helpful is Frame v. Rai (2012)—which actually expands upon some of the principles that are in Farnya v. Chorny and it will be helpful.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Procedural fairness impacts all of us—whether we’re in the court system or not, we are always dealing with procedural fairness in our everyday life.  In the court system you may have noticed that a number of my lectures are about procedure – whether it’s Rules of Civil Procedure (whether in small claims court procedure or family law procedure).  In a court system the procedures are often laid out/ defined in great detail because courts are concerned with the process by which the decision-making is done.  The court is trying to ensure that every party who is involved in a court process is entitled to a procedural fairness in that system.  But what happens in our lives outside of the court system? How does the procedural fairness impact all of us on a daily basis?  That is what this lecture is about.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Who is affected by procedural fairness?  As I stated, the answer is all of us—when we are dealing with the public or quasi public institutions—we are always dealing with issues of procedural fairness.  For example, when you apply for employment insurance, when you’re laid off from your employment or when you are ill or when you are on maternity leave or part of parental leave and whatnot you are dealing with procedural fairness – social benefits, welfare, disability matters all are dealt in procedural fairness.  When you are engaging health care, attending hospitals, universities, colleges, when you’re applying for a license (for example, a driver’s license or health card) – all of these instances are examples where procedural fairness is at play. Even in private institutions, for example, when an employer conducts a workplace investigation that investigation is bound by procedural fairness.  There are so many scenarios in our life where we are engaged with procedural fairness.

What is this procedural fairness? Procedural fairness is essentially fairness of the process / the procedure by which a decision is made.  Procedural fairness is not concerned about what is the end result / what is the end decision but the process by which that decision is made.  How do we understand this process?  

Let me give you an example. A complains that B has harassed him.  A comes to you as the employer.  That is the complaint.  You make the decision to penalize B without an opportunity for B being able to respond to the complaint—you believe that B has been harassing other employees all the time.  There have been many instances in the past that B was reprimanded or punished for his harassing behavior.  On the other hand you know A very well. He is a great person (likable person) who doesn’t lie, doesn’t cause trouble in the workplace.  On the basis of that information you just believe that there is no need for B to respond to these allegations – you must have done so and you go ahead and penalize B. That is essentially a violation of procedural fairness for B. Because you have denied B an opportunity to respond to that complaint and you’re taking a shot in the dark because there is 50 percent chance whether B harassed A or not.  By failing to give an opportunity for B to respond, you have violated his procedural fairness.  That’s an example of how procedural fairness works in the process.

What are some of the basic elements of procedural fairness? There are essentially 2 principles and they are in Latin and the English is: 1. Number one is the right to be heard (this is one procedural fairness principle); and, the 2nd is the right to be judged impartially. Now these procedures manifest in many different ways.

Let’s go through the examples of how procedural fairness may work in different scenarios. 1st of all you should understand that the threshold that engages the duty of procedural fairness is quite low. What is that threshold? If an individual’s rights, privileges or interests are at issue then the procedural fairness is engaged and this is a very low threshold—because if you are affected by a decision then obviously your interests are at issue.  If you applied to a certain university and you believe that the admission process was unfair, of course your interests are engaged in the process.   Procedural fairness, number one, has a very low threshold to be engaged—I mean, I can’t imagine any scenario where you may not be entitled to procedural fairness but that’s what it is the threshold is quite low.

2nd what you want to remember is that procedural fairness is flexible and entirely dependent on context. The two principles that I’ve talked about the right to be heard and the right to be judged impartially, they are applied in the specific circumstances of the case.  That is why it is important to know that what may be a breach of procedural fairness in one context may be completely fair in another context.  Procedural fairness is context driven.  The courts or the administrative bodies are looking at the specific context of that case to decide what is procedurally fair in the circumstances of that case.

The 2 procedural fairness principles that we have talked about: the right to be heard and the right to be judged impartially have different manifestations in different circumstances.  I have listed some of the examples of these manifestations: number one is no undue delay.  If it is fair for you to get a decision in 30 days and you have not received a decision for 6 months, then, that may be an undue delay.  That may be a violation of your procedural right / procedural fairness.  You’re obviously entitled to a fair and impartial process.  We talked about it.  You are entitled to / have the right to know the case against you.  In the example that I have given, B is entitled to know what the complaint against him is—who made the complaint, so that he could respond to it.  Then the right to be heard. B is then entitled to do to be heard.  B is entitled to say his truth, to say his side of the story so that the decision maker can make a just and fair decision.

Legitimate expectation means that if you are a person who is affected by a certain decision and there are certain expectations given to you for that process, then those expectations are complied with.  For example, we know that in the Rules of Civil Procedure a party is entitled to file its defense within 20 days or 30 days in certain circumstances. That means that party is entitled not to be noted in default until that time runs out (20/30 days). If that party is noted in default earlier, then that’s a violation of the legitimate expectation of that party. Similarly, if you are entitled to a decision in 30 days and you don’t get that decision for 6 months or a year—that’s a violation of your procedural right for a legitimate expectation.

There is also a right called freedom to conduct one’s own case.  This is again specific to a scenario.  In this case, the Human Rights Tribunal had imposed on a party to provide “Will Say” statements for certain witnesses.  The party said we are entitled to present our case the way we want it.  You cannot force us to present our witnesses evidence.  They challenged that decision and the decision was overturned by the Divisional Court on the grounds that the party was entitled to present its case the way it sees fit—that it cannot be imposed on the party how it should present a case.

Right to reasons: in certain circumstances you may be entitled not only to know the decision but to know the reasons for that decision. An example of this right was in one case where a probationary police officer was terminated from his employment without giving any reasons. And the employer took the position that the Police Act allowed them to terminate the employee and therefore they didn’t need to provide any reasons.  The court said no, you are required to provide reasons to this particular probationary officer because it is procedurally unfair for him not to know the reasons and not to have an opportunity to respond to those reasons.  In certain circumstances this may be your procedural right – to know the reasons for the decision.

Similarly, in workplace investigations the person who is being penalized because of the outcome of that investigation may be entitled to know the reasons why the decision was made against that party. In circumstances where credibility is an issue we know that oral submissions are important.  In certain circumstances where a decision-making body denies one party to make oral submissions even though there were credibility issues that were at play, then it may be held that that was a denial of procedural fairness. 

In some circumstances you may be entitled to an adjournment of certain decision because you need a little bit more time to respond to certain things and it may be considered that if an adjournment is not given to you, in those circumstances, that may be a violation of procedural fairness.  In some circumstances we know that, for example, in a workplace investigation scenario, Occupational Health and Safety Act imposes an obligation on an employer to conduct an investigation for harassment.  In some other circumstances you may be entitled, based upon your complaint, to have an investigation and if the party or the employer in that circumstance does not conduct an investigation, that may be a violation of your right.

What is the take away: you have to always, always, always watch out for procedure. The devil may lie, the devil may work behind the procedure, greater injustice maybe happening because of lack of procedural fairness.  This is something that you need to always watch for. You need to always claim procedural fairness and you need to follow procedural fairness with respect to your rights and obligations.

Thank you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In our previous lectures we had explained that there are multiple ways in which you can resolve a family law dispute but should you need to go to a court in Ontario to have your family law matter resolved, this lecture explains some of the basic steps that you have to undergo to resolve your matter in a court system.

Note that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Family law Rules are Rules that deal with family law matters.  They are quite similar to Rules of Civil Procedure but in many aspects they are different.  What you need to do is go through these family law Rules to understand what is the process; what is the procedure for obtaining/getting relief from the court (from the Family Court). We have provided the link here which takes you to the family court Rules.  (https://www.ontario.ca/laws/regulation/990114 ) They are available for free online.

Here is the process: First of all you will have to bring an application in the court for whatever family law related relief that you’re seeking—whether you’re seeking a divorce or a custody issue or access issues or support issues; whatever the issue maybe you will have to complete an application and then have that application issued at the court. There are different forms for different kinds of applications.  You need to make sure that you are completing the correct form and then you are having that form issued at the court.

You prepare the application (the right application), you take it to the court and you pay the appropriate fee for the issuance of that application.  The court will take that application, keep a copy, put a court file number on it and stamp on it the date of the issuance.  Then you know that you are in the court system and you have a court file number and the application is issued. Once the application is issued you have to serve a copy of that issued application on the respondent.  This could be your ex-partner or the other party who you are taking to court with respect to this application. That application needs to be served on that party.  There are timelines during which you need to serve that application and there are processes by which you are required to serve that application. It is important to understand the Rules—how you are required to serve that application once the application is served.  Then you have to file proof of service with the court.  This confirms to the court by way of an affidavit that you have actually served the application—the application is now served on the respondent.

Now it is the respondent’s job to prepare an answer, serve it on you and file it with the court.  This step is for the respondent – to prepare their answer within the time prescribed in the family law Rules, then serve it on you and then file it with the court.  If the respondent has not filed its answer within the time frame then at this stage you will be able to proceed for a default judgment against the respondent—which is why it is important that the application is served properly—otherwise you won’t be able to get the default relief. 

For default relief, I think, you can look at my lectures which are under Rules of Civil Procedure.  It will give you an understanding of how you obtain and default judgment in the court process. 

If the respondent has indeed filed a response that means it is contested and it is a contested application. Then the court will require both parties you, the applicant and the respondent to attend Mandatory Information Program.  Both parties are required to attend these programs—separately not at the same time and it may not be in the same location but it is it is a requirement of the process that you attend this Mandatory Information Program.

Once that is done, then the next stage in the process, is case conference. This is before the judge.  Both parties will attend with or without counsel.  The judge’s role in that case conference is to figure out and understand what are the issues in that particular application.  Are there things that could be (the issues) be narrowed down? Are there issues that could be resolved? It’s best to get an overall sense of what the case is about and resolve any issues that could be done by way of discussion by way of some sort of order from the Judge.

When the case conference is completed both parties are required to produce certain documents for the other side—could be financial disclosure or other documents that are relevant to that application.  The applicant has to provide its documents (copies of his documents) to the respondent and vice versa the respondent has to do the same.  Those will be the documents that both parties will rely on to pursue whatever remedy that they are seeking in that application.  The production and discovery process does not have to be after the case conference.  It is one of the steps that needs to be taken.  The production can take place shortly after the Answer has been filed.

In the production if you require further discovery of documents and that is the stage that you go through you may have questions about some of the documents from the other side and you will be able to do that process through the discovery process which is very similar to the process in the Rules of Civil Procedure.

If the matter is not settled then there will be a settlement conference—as the name implies this will be a time when the court will try (it will be a judge who will attend the settlement conference) to settle the case.  If the entire case cannot be settled, it can be part of the case that can be settled and the judge will try to do that but whatever could be done in terms of a mutual agreed resolution, the judge will try to do that. 

If it doesn’t result in any settlement of the case, then the next conference that parties will attend is called Trial Management Conference. As the name indicates the conference is designed—is meant to deal with logistics of scheduling a trial.  Even at the Trial Management Conference the judge will once again try to see if the matter could be resolved.

The court’s efforts are always there to see if the parties can come to some sort of mutual resolution—because when the parties come to a resolution then it’s a resolution that has been crafted by the parties themselves.  It is not something that is imposed by the court because that is what will happen if the matter goes to trial. At trial management the court will figure out if the matter could settle or part of the matter can settle and if it doesn’t then the court will figure out when the trial will take place, for how many days, how many witnesses, etc.  All of these things will be determined at the Trial Management Conference so that when the trial takes place it can take place within the time frame effectively and expeditiously. 

If the matter is not settled at the Trial Management Conference, then of course it will go to trial and after the trial the court (the judge) will give an order with respect to the issues and that is how the matter will resolve in the court system.

Some of the tips that I have for you with respect to the court process:

• If you are filing your application in Ontario Court of Justice or Family Court then the court clerk will provide you a date of 1st appearance.  This is the 1st appearance where both parties will attend and the court, similar to, a case conference—the parties will attend and the court will have a preliminary view of the case and then deal with some of the basic issues that it needs to deal with.
• if your application is filed at the Superior Court of Justice, then there is no 1st appearance but you will have a case conference.  Now for this case conference in Superior Court of Justice, you will have to ask the court to provide you a date—it is not automatically provided by the court clerk.  What you want to do is when you file your application and have it issued at the Superior Court of Justice, that is the time, I suggest, that you should obtain a case conference date (at the time of issuance).  Why?  Because the dates that the court will provide will be further down the line—probably in 3 months to 4 months time, depending upon the court that you’re at.  If you want to expedite your process which I believe will be in your interest, if you are the applicant, then you don’t want to wait until the respondent has filed his or her answer and then you ask for the case conference because then it will take another 3 months or 4 months for you to have the case conference.  It’s a great idea to get the case conference at the outset of the application and for some reason if the respondent is not available on that date you can always mutually agree to have another date scheduled for the case conference.

• The court requires fees for filing of the application and certain other steps. If your personal circumstances are such that you are not able to afford those fees, then remember that there is a process with the Minister of Attorney General—you can fill out a form; you have to provide supporting documents for your income to indicate that you are not able to afford the court fees and then those fees could be waived.  Remember that this option is there and if you need to seek a waiver of the fees, you can apply for it.

• Once your application is issued, I would recommend that you serve it as soon as possible on the respondent. You have a certain time limit to serve the application anyways. I believe that it will help you if you serve the application as soon as possible because once you serve the application that is when the time clock really starts for the respondent. Once you have served the application the respondent if he/she is in Canada or the US then they have 30 days to file their response.  If they are outside of Canada or the US, then they have 60 days to file their response.  If you delay the service of application then this time clock (30 or 60 days) will not start.  If you have a 1st appearance already scheduled or if you have a case conference already scheduled and you delay the service to a point that the respondent does not have sufficient time before attending the case conference or the 1st appearance to prepare and serve their response, then your 1st appearance or case conference is going to get delayed invariably. So, I think, it makes sense for you to serve it as soon as possible.

• With respect to service, I suggest, if you are able to afford it to use a process server for service of your documents, especially, the application because there are specific Rules on how the application needs to be served and process servers are professionals—that is what they do. Their job is to serve various documents / court documents and to various parties.  They know the process, they know what kind of affidavit of service document needs to be prepared and whatnot.  If you’re able to afford it then I recommend that you do so through a process server.  Also they are neutral parties. In some circumstances the relationship may be acrimonious, and you don’t want to be serving it yourself or through your family member so if you are able to use a process server my recommendation is to use a process server. 

Remember that just because you have commenced an application in court does not mean that you have to wait for the court to resolve the entire matter.  You can settle with the respondent or the other party at any stage in the court process.  If you are not able to settle an entire matter you can still agree on some of the issues. For example, you may not agree on how the family property is divided but you can, if you’re able to, agree on access or custody issues then you should do that—and agree on those issues.  You can also obtain consent orders on various matters.  If parties agree on how the children may be accessed and how their custody issues are dealt with and both parties are Ok then they can prepare a consent order and have the court approve that consent order. Also remember that you can bring a motion at any stage in this proceeding with or without notice, depending upon the circumstances of your case.  In fact, you can, if the circumstances are such.  For example, if you’re concerned about safety of children and you can even bring a motion prior to the commencement of application because of the urgency of the issue that is there. Bringing a motion—you have that option at any stage and if you need to bring a motion then you can do so.

What you want to remember is that the process for family  law disputes is designed to be fair and it’s designed to be straightforward—that is why it is slightly different from the Rules of Civil Procedure. The court wants even the self-represented litigant to understand the process easily and to follow it and to seek remedies.  So it’s important to read the family law Rules and then look at the legislation that applies to your case which I provided in previous lectures and see if you can obtain the relief that you are seeking.

Thank you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Each couple may decide to marry or live in a common-law relationship based on their personal preferences and personal beliefs—but the law may treat each couple differently based on the nature of their relationship. In this lecture we will explain the commonalities and differences between a married couple and a common-law couple.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal are the Law Society of Ontario for a referral.

Married versus Common-law partners. What are some of the rights that are the same?

1. Number one child custody;
2. Number two child access; and
3. Number three child support;

It does not rather matter whether you’re married or you are common-law, as long as you have children together the custody access and support issues are dealt with in the same manner—makes no difference. The applicable law with respect to custody and access and child support may be different. For a married couple, they have a choice of choosing between federal laws or provincial laws but with respect to common-law partners the only law that applies to their circumstances is the provincial law. One of our previous lectures explains that.

What are some of the rights that are different?

1. Number one is property and debt: For a married couple they share the value in all of the property and debt and this process is called ”equalization” payments. There is a whole formula for this which we will explain in future lecturers. All of the debts, all of the property and property is not just the house property could be anything – car, furniture, computer, any assets that you may have—are all considered property. Similarly, debt doesn’t matter whether one partner has a credit card debt and the other doesn’t—it does not matter. All of the property and debt is pooled together and that’s where the share of the value between the 2 partners (married couple) is decided.

That could be different in circumstances where there is an agreement between a married couple which could be a marriage agreement or cohabitation agreement and as long as that agreement does not violate statutory rights then, that agreement will be enforced.

With respect to common-law partners, the principle is pretty much straight forward—to each it’s own. If you own a property in your name, that’s yours to keep. The other partner has no rights in that property. Then again if the property is owned jointly, of course, the law will apply and the rights will be based upon your share in that property. The same applies to debt. If the debts have been accumulated separately, then the person who has that debt is liable. The other partner is not.

The property and debt: Even if a common-law couple living in a rental apartment, if only one person has the name on the lease then that person will have the right to stay in that apartment and the other person will not so. The application of the law is pretty straightforward with respect to common-law couples.

2. Another place where the rights would be different is the family home, also called matrimonial home. Married couples have equal rights to stay in the family home and then have the right to claim a share in the value—again equalization payments—that is the entitlement for a married couple. For common-law again to each its own. If you don’t have a share in that property; if it’s not joint; then the person who owns that family home is the person who will keep it.

3. Another kind of right which is different is inheritance. If a married partner dies without a will, then there are specific rules which will automatically entitle the surviving partner (surviving married partner) to certain rights. That is not the case in common-law. There is no automatic right of inheritance if a common-law partner dies without a will. It is important to note the distinction.

There are circumstances in which the surviving partner (common-law partner) may be able to claim certain rights and inheritance but it’s a complicated area. It’s hard to prove but it can be done. The point is it can be done in certain circumstances. But what you want to remember is that there is no automatic right to inheritance when the partner has died without a will.

There are some rights that can be “same”. It depends upon the circumstances of common-law partner and the rights could be the same.

1. Number one is spousal support: As we know a married couple can claim spousal support either directly or through a court. Common-law partner can claim spousal support only if they have lived together as a couple for at least 3 years. That’s in the province of Ontario. I believe other provinces may have different time periods for staying together but in Ontario it is 3 years. If you have lived together for 3 years, only then you can claim spousal support otherwise not.

2. Or if the common-law partners were in a relationship of some permanency for any length of time and had a child together. If you had a child together and the nature of relationship was of some permanence regardless of the time period then you may claim spousal entitlement. With respect to spousal entitlement, one point that you want to remember is that once a common-law partner is entitled to spousal support based on these conditions, then the duration of spousal support or the amount of spousal support does not differ. It’s not a scenario where if a married couple is entitled to spousal support he or she will get more money and then the common-law would get less. Or vice versa. No, that makes no difference as long as a partner can qualify, then length and time period has its own rules and it doesn’t matter whether you’re married or common-law.

3. Welfare and disability benefits can also be the same depending upon the circumstances. If a couple is married, then if they are applying for assistance or disability benefits their combined income is considered in deciding what is the assistance that they will receive. In common-law their combined income is considered only if they have lived together for at least 3 months (not 3 years), 3 months they have shared finances and lived in a marriage like relationship.

4. Immigration sponsorship: As we know a married person can sponsor the other married partner to come and become a Canadian citizen. Common-law spouses/partners can sponsor only if they have lived together for at least one year or they can prove that they were conjugal partners and conjugal partners is a specific term that will be interpreted according to the immigration statutes that apply.

5. With respect to health care decisions, if there is no power of attorney for personal care then a married partner is the substitute decision-maker for the other partner who may not have / who does not have the capacity to make his or her own decisions. In those circumstances the married partner is the substitute decision-maker. In common-law relationships, absent the power of attorney for personal care, the common-law partner is a substitute decision maker only if they have lived together for at least one year or have a co-habitation agreement or have a child together. In one of these scenarios the common-law partner will be the substitute decision-maker when there is no power of attorney.

What you want to carry from this lecture is that it is important, whether you want to marry or not, for you to understand the legal implications of each kind of relationship so that you know how the law will treat your relationship if you ever have a situation that you have to rely on the legal framework.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In the last few lectures we have been discussing issues relating to family law. We have talked about legislation and procedures and whatnot.  Most of the family law disputes are between people who are married or who are in common-law relationships. So, I thought it would make sense to explain how a person or two people can get married legally in Ontario.

We begin again with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Who is eligible to marry in Ontario? Marriage Act is the legislation that deals with marriages in Ontario.  That Act provides for the eligibility:

1. a person/ two people who are 16 years or older they can get married.
2. if those individuals or any one of those individuals is under the age of 18 years, then those people / those individuals need a written consent of both parents. If one of the parent has died or parents are living apart, then the parent who has the actual legal custody of the minor can give consent.  In certain circumstances the consent may be dispensed with but you’ll have to bring an application to a judge and that can be taken care of.
3. another eligibility requirement is that there should not be any lawful reason which will prevent the solemnization of the marriage. One example is mental incapacity. Another example, and I did not know this until I researched this case, that there is an Act called Marriage (Prohibited degrees) Act. That Act actually provides what are the kinds of people who cannot marry each other—which makes sense to us on a commonsense basis.  People who are related lineally (i.e, parents, children, grandkids) – that’s a linear relationship—those are not allowed to marry. Brothers and sisters, of course, half-brother, half-sister and half brother / half sister including by way of adoption—these are people who are not permitted to marry.  This is a specific statute that basically says that these are people who are not allowed to marry and if they marry their marriage will be considered void.
4. mental incapacity: I noticed a very interesting clause / a section in the Marriage Act. And I thought I’ll bring it to your attention.  That is section 7, which basically says that if you are intoxicated by way of drinking liquor or consuming liquor or drugs at the time of your marriage ceremony, then the official who is conducting the ceremony should not solemnize the marriage / should not issue a license because the person is intoxicated.  Remember that when you attend a marriage ceremony you should not be drunk or intoxicated in any other way.  After the marriage ceremony obviously, should be Ok.

Steps to marry: Pretty straightforward:

1. Number one: you will have to obtain a marriage license and then you attend a marriage ceremony.
2. The license is valid only for 90 days so within 90 days you have to attend marriage ceremony or obtain your license once you have decided when you intend to attend your marriage ceremony.
3. Then finally once your ceremony is over the official will register your marriage and then you can obtain a marriage certificate.
4. For the marriage license you submit a marriage license application form. It’s a pretty straight forward form. I looked it up quickly. Here is this marriage license application form.  It requires information for both partners—applicant, joint applicant and you fill this out; you pay a fee $125.00; you attend at the office of the municipality and then you pay that fee; you’ll have to carry two pieces of government issued I.D.’s (one has to have a picture on that I.D.). 
5. Then you attend the ceremony. The ceremony could be civil or religious. 
6. It is performed (the ceremony needs to be performed) by a person who is authorized under the Marriage Act – could be a judge, justice of peace, city clerk or a religious official. If you’re using a religious official you want to make sure that that person is actually registered or authorized under Marriage Act. You go to this link and you will see that there is a list available for download or review: https://data.ontario.ca/dataset/registered-religious-officials –  which takes the name of all the religious officials who are allowed to perform the ceremonies in Ontario.

In the ceremony, both parties must attend. You cannot get married over the phone or internet. Then once the ceremony is complete the official will register the marriage. Once the marriage is registered, you can apply for a marriage certificate. Again it’s a straightforward process you can go to this website. I’ve provided the link in the video.  You can go there and you will see that when you scroll down there is a link for ordering a marriage certificate online.  You can click on that and then fill out the form and obtain your marriage certificate.

That explains how a marriage is officially / lawfully done in Canada and in Ontario and in the next lectures we will talk about further issues relating Family Law.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In one of our previous lectures we had explained the applicable legislation for family law disputes and we have gone through 4 different pieces of legislation and explained to you briefly what those pieces of legislation dealt with—what kind of family law issues they dealt with.

Today’s lecture is a continuation of the last lecture. We’re going to talk about the procedures that apply to a family law dispute and then some of the resources that are available for free for general public to understand the substantive part of your issues and the procedural part of it.

But we begin again with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario.

 Family law procedure: the first thing you need to know about family law is that family law has a separate set of Rules.  These are similar to the Rules of Civil Procedure but they are different in certain ways with respect to family law issues. I have provided the link: (https://www.ontario.ca/laws/regulation/990114). 

You can go to this website, follow the link and here you will see Family Law Rules.  It is very important to go through these Rules to understand the procedure that you need to follow with respect to your family law disputes. For example, Rule 5, here, it explains – it tells you where you can commence your application—where the case starts and has to be heard.  Which court would have the jurisdiction to deal with your matter?  You’ll have to read this Rule to understand which court you can go to and then follow these Rules.  Similarly, they will talk about the service of documents and how do you commence an application, how to answer and what not.  All of this is covered in the Rules here and you need to know the Rules.

Second item that you need to know is family law practice direction.  Often times, many individuals—self-represented litigants and sometimes even paralegals and counsel are not up to date on Practice Directions. Practice Direction is something that is issued by courts. These are also procedures which elaborate on the Family Law Rules that we talked about.  What the courts do in the family law Practice Direction is that it explains further how you deal with a family law matter in a specific court.  You go to this website: (https://www.ontariocourts.ca/scj/practice/practice-directions/) , which takes you to the Practice Directions of the courts in Ontario. Once you are in this main page you will see that there are Practice Directions that may be specific to the region that you are in. For example, if you’re in Toronto, then you click on that and you go to the Practice Directions that may apply province-wide but specific to Toronto. When you are dealing with a family law issue it is very, very important to go through these Practice Directions to understand what are the instructions—what are the requirements of the specific court that your case is being heard at.

For example, you’ll have to go through this consolidated provincial Practice Directions which apply to the entire province. Similarly, the Divisional Court Practice Directions apply province-wide.  Then there are Practice Directions for civil actions, applications, motions and procedural matters in Toronto region—so it is specific to Toronto. Then you scroll down here further and you will see a practice direction which is specific to family cases in Toronto region right.  This is specific to Toronto.  Then you’ll have to go through this Practice Directions to understand exactly what you need to do and why it is important.

 I’ll give an example here.  In case you are you are attending a motion in family court or you are attending a conference (you are required) each party to a motion or a conference must file either this form or that form or the parties may file one jointly no later than 2 pm, 3 business days before the date of the motion or conference. If you do not file this form in accordance with the time line here, then, your motion will simply not be heard.  You may not be able to attend the conference.

It is essential that everyone read through these Practice Directions and understand what needs to be done. There is a lot of stuff that is covered in these Practice Directions. For example, what is the procedure for factums, arguments and submission of brief authorities and how do you submit your trial record and whatnot. It is very important that you are familiar with Practice Directions and every time you are attending a court for your family law dispute, you review the Practice Direction to make sure that there is nothing new that you need to follow.

Finally, there are a number of forms that are used in a family dispute matter.  These forms are available free and you can use these forms here—from the law rule forms and you will see that all of the firms that you may need with respect to your dispute are available.  If you’re commencing an application the form is here; with respect to divorce there’s another form and so on and so forth.  We’ll talk about these forms and Rules in the following lectures.  For now, at least, I wanted you to know that these are the procedures and you can locate them easily and the Practice Directions and family court forms that you may need. (http://ontariocourtforms.on.ca/en/family-law-rules-forms/)

There are many, many legal resources. I have provided some that I know of:

1. Number one, is Legal Aid Ontario. Let’s go to their website (https://www.legalaid.on.ca/). Legal Aid Ontario is a free service (legal service) and you need to have a certain income level to qualify for legal aid. How do you apply for legal aid? You can go here.  You can see that on Legal Aid website it identifies that criminal legal issues, domestic abuse, family legal issues and so on and so forth, these are all the issues that you can get help for if you are able to meet that income criteria for Legal Aid.
2. If your income is more and you are not able to get legal aid but it is still not enough that you could hire a lawyer on the standard rate, then there is something called Justice Net (https://www.justicenet.ca/). It is a not-for-profit organization.  A number of lawyers subscribe to this Justice Net. What they do—in Justice Net you are able to get lawyers on discounted rates.  If you’re not able to qualify for legal aid you can go to Justice net and find lawyers who are able to provide certain services on reduced rate. On this website you can go down, you can choose a professional area, if you’re looking for a family lawyer put in your postal code and you can find a number of lawyers who may be able to provide help on reduced rates.
3. Another resource is called Family Law Information Centers: 

(https://www.attorneygeneral.jus.gov.on.ca/english/family/infoctr.php).  

This is now operated by the Ministry of the Attorney General.  What is a Family Law Information Center? This is an office at a family court across Ontario.  Each Family Law Court has an office and they provide all kinds of information and guidance on family law disputes.  They even have at designated times a lawyer from Legal Aid Ontario who is also available to provide summary advice on your legal issue.  So Family Law Information Centers are very useful and they’re available across Ontario in family courts. You can explore this website and check that out.

     4.    Then there is an organization called Community Legal Education Ontario (CLEO). They have their website (https://www.cleo.on.ca/en) which is an excellent, excellent resource for a lot of legal topics and information is available.  They have all of the topics listed here. On family law, you can check their website. There may be topics that they have covered and I have covered and I believe that their lectures are far better than mine so, if there’s an overlap by all means go to CLEO’s website and get that information.

    5.  Finally, the Ministry of Attorney General itself has a website that provides information. I have provided the link here (https://www.attorneygeneral.jus.gov.on.ca/english/family/). You can go through the Ministry of Attorney General’s website and you can see that there are a number of topics that are covered.  There is legal information available.

The lesson to carry from today’s lecture and the last lecture is that it is important for you to understand what the applicable law is in your case.  It is essential that you know the procedure because if you do not follow the procedure you will not be able to get substantive justice that you’re looking for.  And then to know that there are multiple free resources available if you’re not able to afford a lawyer. You’ll have to do a bit more work obviously to understand the law yourself, to do your homework but you can also obtain information online and through Legal Aid Ontario or Justice Net and get your matters resolved. 

Hopefully that gives you an understanding of some of the resources that are at your hand and they are helpful to you in resolving your family law dispute.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Can a landlord be held liable for the wrongdoing of its tenant which caused some injury or damage to a third party? This is the question that we’re going to address in this lecture and the answer to that question is: in certain circumstances, the answer is yes.  If you want to hear more about how and why I will explain that in the lecture.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referral.

Now this question was brought to the Ontario Court of Appeal in this case called Youssef v. Misselbrook. The decision just recently came out in early February 2020.  The case is quite relevant for landlords with respect to their liabilities or potential liabilities to third parties.

What happened in this case? The landlord own a farm property. It rented the farm property to a tenant.  The purpose was that it could use it as a farm to raise domestic animals.  The tenant had kept 5 donkeys (5 mules) on the property.  The property had a fence and a gate and the gate was unlocked. One could pry the gate open by force.  In this case, one police officer was able to push the gate open alone and so that was the circumstances of the gate. The 5 donkeys which were owned by the tenant escaped from the farm through that gate and onto the adjacent road. And the plaintiff, Youssef in this case, was riding his motorcycle in that area.  It was early in the morning around 3 am and he struck one of the donkeys and sustained very serious injuries. Youssef then ended up suing the tenant and the landlord for damages.

What did the landlord say? Prior to this case it is well-known that it is rarely that a landlord would be held liable for the wrongdoing of its tenant, especially, when the landlord is not on the property.  The landlord does not have the day-to-day control of the premises. The tenant is the only one using the property.  But in this case the landlord admitted responsibility for the maintenance of the fence—that was a fact that they admitted and they never withdrew that admission.  Having said that, they argued that keeping the gates locked and preventing the animals from escaping was solely the responsibility of the tenant because those were the tenant’s donkeys and the tenant had the use and control of the premises.

The Landlord said that they had no presence on the property and so accordingly the landlord argued that they had no duty of care. Remember, the concept of duty of care that we have explained in our lectures on tort?  It’s the same concept.  They argued that they have no duty of care and they have no statutory obligations—only the tenant ought to be held liable.  With respect to duty of care there was a subsidiary argument.  The Motion’s judge, who had made the decision earlier, held that the lease was governed by the Residential Tenancies Act.  And the Residential Tenancies Act has a provision that requires landlord to be responsible for the maintenance of fence and certain other areas of the property.  But the landlord argued that this was a matter – this was a commercial lease – that it was governed by commercial tenancy and not residential tenancy. And therefore the duty of care that was held to be on part of the landlord was incorrect.

What did the court say?  The court ruling was—the court first confirmed that Landlord admitted the responsibility for the condition of the fence. That was the primary admission. And then this responsibility required the landlord to conduct regular inspections and repairs. In fact there was evidence from the past that the landlord did in fact inspect the property and the fence on certain occasions and had carried out certain repairs as well.  Then the court held that the landlord failed to notice that the gate adjacent to a road was unlocked. And, then finally, because the landlord had admitted responsibility for the condition of the fence, the court held that it made no difference whether the lease was residential or commercial because they had that obligation.  On that basis the court held that the landlord is liable even though it was the tenant’s donkeys that caused injuries to Mr. Youssef.

Now, what is it that you want to take away from this lecture? Number one, obviously that there could be circumstances in which, if you are the landlord and you’re not on the property and you’re giving the control of property entirely to the tenant, there may be circumstances in which because of the tenants that you may be held liable or you may have direct duty of care obligations towards a third party.  You also want to notice that if you read the Residential Tenancies Act, it does impose certain obligations on the landlord for the maintenance of its property; specifically fences and some other areas of the property. That obligation cannot be passed on to the tenant.  It is the landlord’s obligation. If there is an injury to a third party because of the landlord’s failure to maintain the property or those areas of property, then the landlord will be held liable to the third parties—something to note. Also what you want to make sure is that in leases, if there are responsibilities divided between landlord and tenant within the statutory framework, then those responsibilities are clearly defined and if you require indemnification from the tenant in certain circumstances, then those clauses are there. Those kind of clauses are usually already present in commercial leases.. I also believe that it will make sense for the landlord to monitor the rental property appropriately for its usage. Because of this case, there may be circumstances where if the landlord is not monitoring the property and there is some damage to a third party, it may be held liable.  Finally, if there are ways to obtain insurance coverage for certain cases like these, then it may be a good idea to explore those.  I don’t know if insurance covers can be provided in some circumstances but something to explore and see if you have appropriate insurance coverage for your property.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In our previous lecture we talked about some of the avenues resulting in family law disputes. In today’s lecture will talk about the applicable legislation. If you have a family law dispute and you need to go to court what are some of the different legislations that may apply to your scenario.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What are the legislations that impacts family law in Ontario? There are 4 pieces of legislation.

A. Family Law Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/

B. Divorce Act: https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html

C. Children’s Law Reform Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html

D. Child, Youth and Family Services Act, 2017: https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html

A. Family Law Act: is a provincial legislation and what does it cover? It covers the division of family property; it covers the issues relating to matrimonial home; it deals with support obligations regarding child and spousal support, both; it deals with domestic contracts and then it deals with dependents claims for damages. I have provided the link here and I will also post it in the youtube posting. I’ll post the link so you can access this.

This is what the Family Law Act looks like. It says R.S.O1990 cF. 3. RSO means revised statute of Ontario. When there is an “O”, that indicates that it’s an Ontario statute. If it said “RSC”, that means revised statute of Canada. So, this is a provincial legislation. And you will see here that it has separate, different parts. One part deals with family property, the matrimonial home, support obligations, domestic contracts.

(a) Domestic contracts. Is dealt with here because it deals with all kinds of domestic contracts—marriage contract, cohabitation agreement and separation agreement. What it does is: this legislation provides certain clauses that deal with those marriage contracts. For example, in marriage contracts parties can enter into a marriage agreement. But when a marriage contract deals with the matrimonial home or its disposition, then that clause is unenforceable in a marriage contract pursuant to this legislation. So, it’s important to understand what is the framework of domestic contracts that is permissible for parties to enter into.

(b) Then there is dependents claim for damages: what this section or this part allows, is it allows dependents of certain people to claim damages. For example, if a person was injured because of the negligence of another person or died because of the negligence of another person, then the person who was injured or the person who died, his or her spouse, children, parents, grandparents or siblings may have certain rights to claim damages against the person who caused—who was negligent and who caused the injury or death. This is the part of the Family Law Act which allows that kind of a claim to be made in a personal injury, by a negligent client.

(c) Now it is important to note that the Family Law Act does not deal with custody and access issues. It does not deal with custody and excess and it does not deal with divorce. It is dealing with division of family property, matrimonial home, support obligations but no information, no guidance, no legislation on custody and access in the Family Law Act.

B. Now we will figure out where we find legislation with respect to custody and access. The second legislation I want to talk about is Divorce Act. Divorce Act is a federal statute. It deals with divorce. Couples who are married legally married they can obtain the wars under the under the Divorce Act. A common-law couple does not need to seek a divorce. They do not need to seek any court order for their separation—with respect to the separation itself. Now because the Divorce Act deals with married couples, it does provide for child and support obligations but this is only for married couples. Remember I showed you in Family Law Act that people can seek child and spousal support. So Family Law Act would apply to either married or common-law couples but Divorce Act only applies to people who are married. Under this Act only married people can seek child and spousal support.

Similarly, this Act provides for custody and access and again it only applies to married couples. Family Law Act deals with either married or common law couples—it deals with their spousal support and child support obligations. Family Law Act does not deal with custody and access. Divorce Act deals with only for married couples.

C. The third legislation that comes into discussion is Children’s Law Reform Act. And again, this is a provincial statute and this statute deals with custody and access issues for all parents. I’m going to quickly show you the Divorce Act. Again this is RSC—revised statute of Canada. It deals with divorce—and under the Corollary Relief Section, it deals with child and support orders, spousal support orders and then custody orders. These are people who are married. Then with respect to Children’s Law Reform Act, again, which is an Ontario statute, it deals with custody, access and guardianship and provides for the custody and access orders. Custody and access for all parents can be dealt with by Children’s Law Reform Act. There’s a section about parenting which explains—it actually indicates what is a parent under law. There are also issues of guardianship of a child’s property—if a child owns certain property—then who is to be the guardian of that property—that is also dealt with under this legislation. Then if a child’s property needs to be disposed off, then what are the laws with respect to that, is dealt in this statute.

D. The final legislation that I want to talk about today is called Child Youth and Family Services Act, 2017, which is right here. Again, it’s an Ontario statute. Essentially, this provincial statute deals with the rights of children and youth. It specifies what are their rights. And deals with child protection matters—Children’s Aid Society, Foster Parenting—all of these are covered under this particular legislation. What is also important to know is that all adoption matters are also dealt with under this specific legislation.

These are the four legislations that you may be dealing with, with respect to a family law dispute depending upon your circumstances. It is important for you to understand which specific legislation applies to your circumstances. In our previous lecture we discussed which specific court would have jurisdiction to deal with your matter. If you go to the wrong court, you will not be able to get the relief that you are seeking because the court does not have jurisdiction. Similarly, when you’re asking for a legal relief you need to know which specific legislation applies to your case and the specific circumstances of your case and there is some overlap between these legislations. It’s not one legislation that deals with that. Ideally, everyone would have preferred that there was a one-stop-shop—one legislation that could have dealt with all family law matters—but there are reasons for having these different legislations. Federal government has certain jurisdiction to deal with marriages and divorce. Provincial government has certain jurisdiction. All of that comes into play and then each of these legislations has different functions and their basis for creation is slightly different from each other. That’s why there is an overlap and you need to understand all of that. Also it is important to understand the contents of these legislations so you know in the specific circumstances of your case, how this legislation would apply.

Hopefully, that gives you an understanding of the legislation in Ontario. This is only for Ontario. Just to keep in mind that if you’re dealing with these matters in another province then the Divorce Act will apply to all provinces and territories of Canada but the Family Law Act would differ from province to province. Make sure that you review those legislations as well.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will explain to you what are some of the disputes/issues that are the domain of family law in Ontario.  And, then, what are some of the avenues through which you are able to resolve these disputes in Ontario.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a family law lawyer or a paralegal or the Law Society of Ontario for a referral.

What are some of the disputes that are the domain of family law? Essentially, Family Law deals with the rights and obligations of spouses, parents and children.  Those are the 3 parties—if they have any issues with respect to each other’s rights and obligations—that will be considered a family law issue.  Some of the examples of these issues are prenuptial agreements, marriage agreements, cohabitation agreements (cohabitation agreements are when you are living as a couple, as common law not just as roommates), separation agreement, mediation and arbitration agreement (again in the context of these issues), separation and divorce matters, child custody and access issues, child support, spousal support, family law property division, trust issues, restraining orders, issues of domestic abuse and adoptions.  These are some of the examples of issues.  If you have those issues then you should know that these are family law matters and will be dealt with under the Family Law Rules.

Now what are some of the avenues of resolving family disputes?  There are a few ways that you can resolve these disputes.

1. Number one obviously is by direct negotiation. In this case the parties talk to each other directly and come to an agreement.  Then that agreement they write it up, they sign it and then they follow it.  They don’t need involvement of any 3rd party or courts or anyone else to resolve their issues.
2. A lot of times it is unlikely because the relationship is soured and it is not possible for parties to have direct negotiations. So if they are unable to resolve issues directly they can always go to mediation. A mediator is a person, often a retired judge or a senior lawyer or a psychologist or a social worker.  Any of these people could be a mediator.  Their goal is to be neutral and objective and help parties come to a resolution.  Oftentimes a lot of mediations are successful in family disputes.
3. Third approach is called collaborative family law. Essentially, in this approach the parties make a commitment to each other that they will collaborate with respect to the resolution of their issues.  They will talk to each other and come to mutual agreements. Sometimes collaborative family law matters may result in no resolution and that’s possible.  When you engage in collaborative family law and if there is no resolution and you have to get into a court (get into litigation), then you will have to change your lawyer.  You have to find another lawyer. The collaborative family lawyer will no longer represent you.

4. Fourth option is arbitration. This is an option where parties hire someone like a retired judge or a senior person who is considered an arbitrator. There are specific rules and regulations for how an arbitration is conducted.  This is not a court process.  This is a process that is outside of the court system.  Parties hire—they pay the arbitrators fee they hire an arbitrator and then the arbitrator listens to the case and provides a decision.  An arbitrator’s decision is binding.  It is enforced by courts or it is as good as a decision that you get from a court.  

The advantages of arbitration process (arbitral process) is that it is more expedient.  You are able to retain an arbitrator quickly, you can have your matter resolved quickly. The obvious disadvantage is because you are paying for the process and you’re paying for the arbitrator, oftentimes the process is expensive.

5. And, if none of those 4 avenues work for you, then you can always go to court and have your family law dispute resolved in court.

What is the court structure for family law in Ontario? There are three different kinds of courts in Ontario that deal with family law matters.

1. Number one is called Family Court, which is a branch of Superior Court of Justice but it’s called Family Court;
2. Number 2 is Ontario Court of Justice; and
3. Number 3 is the Superior Court of Justice.

 and we will discuss one by one what each of these court do.

1. Family Court: There are 25 Family Courts across Ontario from Barrie, Belleville, Bracebridge, Brockville, Cayuga, Cobourg, Cornwall, Hamilton, Kingston, Kitchener, Lindsay, L’Original, London, Napanee, Newmarket, Oshawa, Ottawa, Pembroke, Perth, Peterborough, Picton, Simcoe, St. Catharines, St. Thomas, Welland. The list is here. But there are 25 Family Courts in Ontario. The advantage of family courts is that they deal with all our family law matters.  Everything that I just explained to you—could be a dispute relating to family law—they’re all under the jurisdiction of family court. It’s a one-stop-shop. You can go to family court and get those resolved. 
2. If you don’t have a family court in your municipality, if you’re not in one of these municipalities, then a family matter is divided between Ontario Court of Justice and Superior Court of Justice.  There is some overlap but there are some things that a Court of Justice will not do and some things that a Superior Court of Justice will not do.  You need to have a clear understanding that if you don’t have a family law court in your region (in your municipality), then you need to have an understanding of whether your matter is with the Ontario Court of Justice or Superior Court of Justice.
3. What does Ontario Court of Justice do? It deals with matters relating to custody, access, child and spousal support, adoption and child protection applications, enforcement of child or spousal support in a domestic contract, and spousal support either it’s in a domestic contract or a court order.

In all of these scenarios you are able to go to Ontario Court of Justice and seek relief. What Ontario Court of Justice does not deal with is divorce and division of property matters. These are 2 important issues but if your issue relates to divorce or division of property then you won’t be able to get relief from Ontario Court of Justice because they do not have jurisdiction.

3. Superior Court of Justice: What are the issues that Superior Court of Justice deals with? Obviously, divorce and division of property because Ontario Court of Justice does not deal with it. Claims relating to family home, trust claims and claims for unjust enrichment, child and spousal support, custody and access, applications and appeals relating to family arbitration.

If you had engaged an arbitrator and a decision was made and you are dissatisfied that it was not a just decision/a just resolution, you have the ability to appeal that decision with the Superior Court of Justice.  Superior Court of Justice does not deal with adoption matters or child protection matters.  It deals with child protection matters only when there is an appeal but otherwise it does not deal with all of these issues.  

Once you have that basic understanding, then if you go into court you are able to choose which court to go to. You need to know: number one whether your specific dispute—does it come under the umbrella of family law issues.  I hope that you have some basic understanding of that. I hope you have some clarity on what are the different options that you can exercise to resolve your dispute and if you have to go to court, then you need to figure out which court you have to go to so that your dispute is in the right court and you’re not wasting your time and money in the wrong court and then you are able to get your issue resolved expeditiously.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

This is our 4th lecture in this series—where we had initially posed the question whether any tort liability could arise from a wrongdoing in the virtual world.  We discussed this in our first 3 lectures. We talked about how virtual reality operates.  What is the kind of interaction that a real person can have in the virtual world? What kind of impact a real person experiences from any conduct in the virtual world? We talked about the reality of damages or harm, especially the mental trauma that one can suffer because of the wrongdoing in the virtual world.  Then in the 3rd lecture we talked about some of the aspects of tort of negligence—there were 5 elements of tort of negligence that we talked about. We emphasized our discussion on the duty of care – which is the most important point in the tort of negligence—especially when you’re looking for a new duty of care towards the defendant.  We explore that. 

 In today’s lecture we will talk about the rest of the factors in the tort of negligence and see whether there is a real chance that a tort liability may follow from wrongdoing tortious conduct in the virtual world.

We begin our lecture with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding the issues that you may be facing you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

We talked about the elements of tort of negligence. These are 5 elements that the defendant owes to the plaintiff’s duty of care.  As I said we spend significant time in the last lecture talking about whether there is a duty of care for the online virtual world providers – whether there is a duty of care for the person who uses an avatar to commit a wrongdoing to another avatar, could there be a duty of care.  We discussed that in the previous lecture. 

The 2nd element is whether the defendant breached the standard of care and the standard of care is a reasonable person’s standard. We will talk about that today and whether the defendant’s breach caused the plaintiff’s injury or loss which is causation.  The injury or harm – whether that was foreseeable or not. And, then finally, did the plaintiff actually suffer harm or loss. Let’s go over these one by one.

Standard of care: It’s called also called “reasonable person’s standard”. It is defined as what a reasonable person would have done in those circumstances – where the circumstances means that specific act that we believe is the tortious conduct, is the wrongdoing.

An example of this could be when a person sues a surgeon for not performing a surgery correctly. Then the court will consider what another reasonably qualified surgeon would have done in those circumstances.  The court has to determine 1st what is the standard of care that that person (the defendant) ought to have followed.  

Again, because it’s a reasonable person standard, the court objectively looks at what another reasonable person with the same qualifications would have done. In case of surgery, the court will determine, for example, what are the guidelines of the college (the regulatory college) for the physicians. What are the guidelines? What is it that another surgeon would have done in the similar situation and then determine whether the conduct in question, whether that conduct in fact breached that standard or not.  If a reasonably qualified surgeon would have done the same thing that this surgeon had done, then, obviously the court will conclude that the standard was not breached by the surgeon.  So there will be no tort liability.

Now in case of online gaming industry, virtual world, we’re talking about Roblox and because Roblox or other similar gaming present itself as imagination platforms, the question is what would another reasonably imaginative platform what would they have done in terms of the creation of that imagination part. We are restricting ourselves to Roblox because Roblox presents itself as an imagination platform that targets kids as young as 6,7 years old. What a reasonable company that is creating imagination platforms for young kids 6,7 year olds, would they create an imagination platform that allows for example, pornography to be shown to the young children. The answer would be no. Would it allow young children to be exposed to sexual conduct or misconduct in that imagination platform?  The answer will be no. Would it allow online bullying through virtual world and the answer would be most likely be no.  

The question then – the standard of care – when the court is considering this question is that if it’s an imagination platform, would there be certain limits to that imagination platform that ought to be put in place.  That question is dependent upon who is the user of platform, what is the purpose of platform, this is not a platform for sexual games, it is a platform for children to play ordinary games.  Those are the things that the court will determine: what a reasonable company that would have created that platform would have done in similar circumstances.

The next question is, obviously, even if there is harm, was the harm actually caused by the defendant’s breach.  In our example and we took the example of that 7 year old that experienced virtual sexual assault in Roblox while playing a game.  If the harm is mental trauma, the question for the court to consider is, was that mental trauma caused by the specific wrongdoing (in our case the virtual sexual assault), is that what caused that injury or harm or loss.  Because there could be other circumstances that may have caused mental trauma.  The child may have been experiencing some difficulties at home, maybe her parents are going through some difficult times, maybe the child has experienced the loss of a loved one – any of those circumstances.  Even though there is trauma or harm, what actually caused that trauma is a question.  If the harm or trauma was not caused by the defendant’s brief then the causation is not established.  

It’s a difficult question, especially when you’re dealing with mental trauma and issues of mental suffering.  It is easier to show causation, for example, in a motor vehicle accident where you know prior to the accident your legs were fine, your arms were fine but due to the accident you suffered a broken bone or something.  That’s easier to show because it is visual. It can be shown by evidence that you were fine before the accident and after the accident you have suffered this kind of thing. Even though causation itself can get complicated but let’s not get into that discussion at this stage.  The point is that causation needs to be shown as an element of negligence in our scenario.

The 4th element is foreseeability.  In foreseeability, could a reasonable person foresee or anticipate the injury or harm.  Was it just a freak accident or is it something that could be foreseen? Can it be foreseen that if you conduct yourself or someone conducts herself or himself in such a way in the virtual world that conduct, that wrongdoing may cause real harm to somebody? Is that foreseeable?

Foreseeability is an interesting thing.  Foreseeability is based on common sense but it is also based upon our experiences.  If you pose this question or if you had posed this question 20 or 30 years ago when the virtual reality was just coming into existence, a lot of people may not have foreseen that the conduct of this nature may cause real harm.  Some people may have been anticipated it but a lot of people may not have.  As we experience or as we will experience more injury more harm, unfortunately, it will be easier for us to recognize the foreseeability of the conduct and the harm.  Foreseeability is also dependent upon our experiences.

Another example that I can give you is with respect to toys. Right now we live in an age where we have so many toys and all kinds of toys for children and you will notice that the boxes have labels on toys and it would indicate that certain toys are suitable for, let’s say, children of 7 years and older. It indicates or suggests that: number one, the toys may not be suitable because the younger kids or toddlers may not have the capacity to play with that toy.  Also, that the children, the younger children, the toddlers may experience some hazards, some risks.

For example we know that if you give anything of small size to toddlers, the first thing they do is they pick it up and put it in their mouth. Choking hazard toys are an example of that. There are age restrictions on that.  Our foreseeability of the toddler will picking up anything and putting it in his mouth and could cause choking is based on our experience. Children, young children in various circumstances suffered these choking issues and then the law became aware of the foreseeability of the harm – which resulted in certain labels and warnings on these toys and our education on these issues.  Foreseeability is again another element that needs to be proven with respect to the tort of negligence.

Final element is proving damages.  We need to show to the court what was the harm or loss.  In our example the harm or loss is mental trauma or mental suffering.  Then the next element is how do you prove it.  You have to prove that. As I said it is easier to show physical harm because you can see, you can visualize a broken bone a broken finger and the harm is easy to visualize.  In cases of mental trauma even though courts have awarded damages for a long time on mental suffering and mental trauma, they always struggle with it because it is not easy to understand someone’s mental trauma or suffering.  It is not usual. You have to rely on medical evidence. You have to rely on circumstantial evidence.

In one of the examples that we had given in our Lecture 1, there was a 7-year old child who was groomed in this online game, also in Roblox, through a 3rd party app, to send his sexually explicit images to other people.  His parents recognized issues because the child was socially withdrawn from family activities.  He was constantly withdrawn from them. When you are showing mental trauma or mental suffering in those cases, then there is circumstantial evidence that you can bring—inability to interact socially or isolation and all of these things.  It is possible to do that.  Point is that regardless whatever damage one person is claiming at the end of the day you have to prove those damages to the court to be able to get remedy from them.

In conclusion, what we have done in these 4 lectures is, I have proposed and at least in that discussion that wrongdoing in the virtual world, it is possible it will lead to a liability in the real world because the harm is real; if the harm is real then it is easy to foresee, that that sort of conduct could cause those harms—if the harm is real then, obviously, it is foreseeable that this will cause it.  We had that discussion but that’s not the end of discussion because there are many defenses to tort liability. 

This is where the rubber hits the road—because it is in those defenses that a lot of defendants will try to get away from tort liability.  One example of those defenses is contractual waivers.  We have all seen those, all the time, all around us. You go to a park you sign a contractual waiver, you go to skiing you sign a contractual waiver, which indicates that if you get injured in skiing the ski resort is not liable.  These contractual waivers are pretty strong.  They have a way for the defendant to avoid liability.

In the U.S. there is the First Amendment in the Constitution.  There are cases that indicate that online gaming is considered an expression and so they’re protected under the First Amendment of the Constitution in United States. What we will do, we will cover these defenses in our next lecture and see what are the kind of defences that are available to the virtual world providers and people who may use virtual world to do certain wrongdoings in the virtual world, what kind of defenses they may have and then we’ll discuss whether those defences would make sense in the coming months or years when these issues will come forth to the court.  Please stay tuned.  We will have another lecture shortly.

Thank-you for watching.